Thompson v. Grounds
Filing
17
FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Dale A. Drozd on 1/28/15 recommending that petitioner's application for writ of habeas corpus be denied. Referred to Judge Garland E. Burrell. Objections due within 14 days. (Plummer, M)
1
2
3
4
5
6
7
8
UNITED STATES DISTRICT COURT
9
FOR THE EASTERN DISTRICT OF CALIFORNIA
10
11
ANDREW B. THOMPSON, III,
12
13
14
15
No. 2:14-cv-0032 GEB DAD P
Petitioner,
v.
RANDY GROUNDS,
FINDINGS AND RECOMMENDATIONS
Respondent.
16
17
Petitioner is a state prisoner proceeding pro se with a petition for a writ of habeas corpus
18
pursuant to 28 U.S.C. § 2254. Petitioner challenges a judgment of conviction entered against him
19
on January 28, 2009, in the San Joaquin County Superior Court on charges of second degree
20
murder, unlawful possession of a handgun, unlawful possession of ammunition, and active
21
participation in a criminal street gang (street terrorism), with various sentencing enhancements
22
based upon use of a firearm. He seeks federal habeas relief on the following grounds: (1) his
23
right to confront witnesses under the Sixth Amendment was violated when the contents of an
24
autopsy report were admitted into evidence at trial through the testimony of a witness who had
25
not prepared the autopsy report; (2) admission of a trial witness‟ testimony that petitioner
26
repeatedly invoked his right to counsel during police questioning violated the decision of the
27
United States Supreme Court in Doyle v. Ohio, 426 U.S. 610 (1976); (3) his conviction on the
28
street terrorism charge was not supported by sufficient evidence; and (4) his sentence violates
1
1
state sentencing law. Upon careful consideration of the record and the applicable law, the
2
undersigned will recommend that petitioner‟s application for habeas corpus relief be denied.
3
I. Background
In its unpublished memorandum and opinion affirming petitioner‟s judgment of
4
5
conviction on appeal, the California Court of Appeal for the Third Appellate District provided the
6
following factual summary:
7
A jury found defendant Andrew Bruce Thompson III guilty of
second degree murder, unlawful possession of a handgun, unlawful
possession of ammunition, and active participation in a criminal
street gang (i.e., street terrorism), with various sentencing
enhancements, all in connection with the shooting death of his
girlfriend, Erica Orsino. Sentenced to an aggregate term of 68
years 8 months to life in prison, defendant appeals, contending: (1)
the trial court violated his constitutional right to confront the
witnesses against him by admitting a medical examiner‟s testimony
about an autopsy performed by another examiner; (2) a police
detective who testified for the prosecution committed Doyle1 error
by repeatedly testifying about defendant‟s request for an attorney;
(3) the trial court erred when it directed the jury to reconsider
inconsistent verdicts on two different firearm enhancements on the
murder charge; (4) there was insufficient evidence to support a
gang enhancement and the street terrorism charge; and (5) the trial
court erred in failing to stay the sentence for street terrorism under
Penal Code2 section 654.
8
9
10
11
12
13
14
15
16
We conclude the trial court did not violate defendant‟s
constitutional rights by admitting testimony about an autopsy by a
different medical examiner than the one who performed the autopsy
and did not err in sentencing defendant for street terrorism. We
also conclude there was no Doyle error and defendant has not
shown there was insufficient evidence to support the street
terrorism charge. We do find error, however, in the trial court
asking the jury to “take a second look at the [enhancement] findings
on [the murder charge],” because the jury had found the firearm
enhancement allegation under section 12022.53, subdivision (d) not
true but the allegation under section 12022.5, subdivision (a) true,
and the court “wasn‟t sure if that‟s what they intended.” This was
error because the trial court had no right or power to direct or
suggest that the jury reconsider its “not true” finding on the first
firearm enhancement.
17
18
19
20
21
22
23
24
Because of this error, we will reverse the finding on the section
12022.53, subdivision (d) enhancement that the jurors returned after
25
26
27
28
1
Doyle v. Ohio (1976) 426 U.S. 610 [49 L.Ed.2d 91].
2
All further section references are to the Penal Code.
2
1
the court told them to “take a second look” and will remand the
case for resentencing.
2
FACTUAL AND PROCEDURAL BACKGROUND
3
4
5
For our purposes, the underlying facts may be briefly stated. On
May 24, 2008, Orsino was shot to death in her bedroom at her
mother‟s house. At the time, defendant (her boyfriend) was the
only other person in the room. Defendant is an admitted gang
member.
6
The Charges
7
8
9
10
11
Defendant was first charged in the death of Orsino four days later.
Ultimately, an information charged him with murder. The murder
charge included an enhancement allegation under subdivision (d) of
section 12022.53, alleging defendant intentionally and personally
discharged a handgun in the commission of the murder (the gun
discharge enhancement).
There was also an enhancement
allegation under subdivision (a) of section 12022.5, alleging
defendant personally used a firearm in the commission of the
murder (the gun use enhancement).
12
13
14
15
The information also charged defendant with being a felon in
possession of a handgun, a rifle, and ammunition. Defendant was
also charged with street terrorism and that charge included a gun
use enhancement allegation. The information also alleged that
defendant had a prior serious felony conviction and two prior prison
terms. Early on in the trial, defendant admitted the prior conviction
and prior prison term allegations.
16
Dr. Omalu’s Testimony
17
18
19
20
At trial, Dr. Bennet Omalu, the chief medical examiner for San
Joaquin County, testified for the prosecution. After the prosecution
established his qualifications, the court determined that Dr. Omalu
qualified as an expert in forensic pathology. Dr. Omalu then
testified that “part of [his] job as chief medical examiner is to
review autopsies performed by other doctors and then testify
independently based on [his] experience at a trial.”
21
22
23
24
25
26
27
28
Dr. Omalu reviewed the official records of the autopsy of Orsino,
including the autopsy photographs, the crime scene photographs,
and the clothes Orsino was wearing when she was shot. He also
reviewed the autopsy report prepared by Dr. Pakdaman, who
performed the autopsy of Orsino. From the report, Dr. Omalu
testified to the time of death and about Dr. Pakdaman‟s examination
of Orsino‟s body and clothing. From autopsy photographs and
Orsino‟s shirt, Dr. Omalu testified about the entrance gunshot
wound on Orsino‟s abdomen and to his opinion that the gun was at
least two feet away from Orsino when the shot was fired. From
another autopsy photograph showing the exit wound and
measurement information that was presumably from the autopsy
report, Dr. Omalu testified that the bullet went essentially straight
through the body.
3
1
5
With reference to a mannequin (and, again, presumably to
information from the autopsy report), Dr. Omalu then testified
about the organs the bullet struck, the damage it caused –
particularly to the iliac artery – and how that damage caused arterial
bleeding that led to Orsino‟s death. Further testimony addressed
the amount of internal bleeding, the absence of additional injuries,
and the likelihood that Orsino was lying on the bed when she was
shot. At no time did defendant object to Dr. Omalu testifying
because he did not perform the autopsy on Orsino.
6
Detective Rodriguez’s Testimony
7
Stockton Police Detective Eduardo Rodriguez testified that when
defendant turned himself in to the police after the police went to his
parents' house, defendant had an injury on his upper left arm.
Detective Rodriguez further testified that he thought he asked
defendant if he wanted medical assistance, but defendant “wouldn't
say anything to [him].”
2
3
4
8
9
10
On cross-examination, Detective Rodriguez testified defendant had
a wound on his chest as well. As defense counsel pursued the issue
of medical care, the following exchange occurred:
11
12
“Q. Now, I think you indicated that you offered some medical care
to the defendant, and you indicated he just didn‟t answer your
question about whether or not he wanted medical care, or -
13
14
15
“A. It was kind of unusual, because whatever question we asked
him, I believe he said he wanted his lawyer.
16
“Q. Okay.
17
“A. If we asked him for water, medical help, „I want my lawyer.‟
18
“Q. Okay. And that was – you asked him if he wanted to see
somebody to get some help for his wounds, and that‟s the same
answer he gave you?
19
“A. No matter what question we asked him, his response was he
wanted his lawyer.
20
21
“Q. Here is my question. Did he ask you to see a lawyer prior to
the time that he saw someone to get medical care for his wounds?
22
“A. Well, a lawyer had brought him in, so I assume they discussed
it.
23
24
“Q. Well, I know. I'm not interested in your assumptions. Please
listen to the question. Did he make that reply, I want to talk to my
lawyer, when you asked him about getting medical care?
25
26
“A. I don‟t remember. I‟d have to refer back to the tape for his
response.
27
28
/////
4
1
2
3
“Q. When you were talking to him about whether he wanted
medical care or not, was his lawyer present?
“A. No.
4
“Q. And just for the record, I was not the lawyer who was with him
at the time, is that correct?
5
“A. Correct.”
6
The trial court later instructed the jury as follows: “A defendant
has an absolute constitutional right not to make statements to the
police and request representation by an attorney. Do not consider,
for any reason at all, the fact that the defendant did not give a
statement to the police and requested representation by an attorney.
Do not discuss that fact during your deliberations or let it influence
your decision in any way.”
7
8
9
10
The Verdicts
11
The jury returned its verdicts on January 27, 2009, but because the
foreperson was not well, the trial court did not unseal them until the
morning of January 28. When it did so, the court made the
following statement: “Okay. [Jury foreperson], I‟m going to have
you folks go back into the jury room. You have two verdict forms
filled out on Count 1 [the murder charge] that are inconsistent,
okay, so I need you folks to tell me what you meant, okay? Put
those on top. And I‟m also going to ask you to take a second look
at the findings on Count 1. Okay. Send us a note when you are
ready to come back in.” (Italics added.)
12
13
14
15
16
17
18
19
20
The jury subsequently sent a note indicating “[t]he corrections have
been made for the required paperwork.” The jury then returned a
verdict of guilty of second degree murder, with true findings on
both the gun discharge enhancement and the gun use enhancement
on that charge. The jury found defendant guilty of unlawfully
possessing a handgun and ammunition, but not guilty of unlawfully
possessing a rifle. The jury also found defendant guilty of street
terrorism and found the gun use enhancement allegation on that
charge true.
21
***
22
Sentencing
23
24
25
26
The trial court sentenced defendant as follows: On the murder
charge, the court imposed a mandatory term of 15 years to life in
prison, doubled to 30 years for defendant‟s prior conviction. The
court imposed a consecutive term of 25 years to life for the gun
discharge enhancement and a middle term of four years for the gun
use enhancement, but the court stayed the latter term under section
654.
27
28
On the remaining charges, the court selected the street terrorism
charge as the principal term and imposed the upper term of three
5
1
years, doubled to six for the prior conviction. The court also
imposed a consecutive four-year term for the gun use enhancement
on the street terrorism charge. The court imposed consecutive
terms of eight months (one-third the middle term), doubled to 16
months for the prior conviction, on the charges of unlawfully
possessing a handgun and ammunition. The court imposed two
one-year sentences for the prior prison terms, but stayed one of
those sentences under section 654. The aggregate prison term was
68 years 8 months to life. Defendant timely appealed.
2
3
4
5
6
People v. Thompson, No. C061568, 2010 WL 4493478, at **1-5 (Cal. Ct. App. Nov. 10, 2010).
After the California Court of Appeal affirmed petitioner‟s judgment of conviction, he filed
7
8
a petition for review in the California Supreme Court, in which he raised all of the claims
9
contained in the petition now before this court. (Resp‟t‟s Lod. Doc. 5.) The California Supreme
10
Court granted the petition for review, but deferred further action pending consideration and
11
disposition of an issue related to petitioner‟s Confrontation Clause claim in four cases that were
12
then pending before that court. (Resp‟t‟s Lod. Doc. 6.) Subsequently, by order dated May 22,
13
2013, the California Supreme Court dismissed review of petitioner‟s claims in light of its
14
decisions in People v. Lopez, 55 Cal. 4th 569 (2012) (holding that the introduction into evidence
15
of a non-testifying laboratory analyst‟s report on the percentage of alcohol in a blood sample
16
taken from the defendant, and the testimony of the analyst‟s colleague relating some of the
17
report‟s contents, did not violate defendant‟s right to confrontation); People v. Dungo, 55 Cal.4th
18
608 (2012) (holding that statements in autopsy report describing the condition of murder victim‟s
19
body were not testimonial; thus testimony of analyst‟s supervisor about those statements did not
20
violate the Confrontation Clause); and People v. Rutterschmidt, 55 Cal.4th 650 (2012) (holding
21
that any Confrontation Clause violation in admitting toxicology analysis of victim‟s blood
22
constituted harmless error); and the decision of the United States Supreme Court in Williams v.
23
Illinois, ___ U.S. ___, 132 S. Ct. 2221 (2012) (holding that an expert‟s testimony about a non-
24
testifying analyst‟s report referring to DNA profile as having been produced from semen found
25
/////
26
/////
27
/////
28
/////
6
1
on victim did not violate the Confrontation Clause). (Resp‟t‟s Lod. Doc. 7.)3
2
3
Petitioner filed his federal habeas petition in this court on January 6, 2014. (ECF No. 1.)
II. Standards of Review Applicable to Habeas Corpus Claims
4
An application for a writ of habeas corpus by a person in custody under a judgment of a
5
state court can be granted only for violations of the Constitution or laws of the United States. 28
6
U.S.C. § 2254(a). A federal writ is not available for alleged error in the interpretation or
7
application of state law. See Wilson v. Corcoran, 562 U.S.___, ___, 131 S. Ct. 13, 16 (2010);
8
Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); Park v. California, 202 F.3d 1146, 1149 (9th Cir.
9
2000).
10
11
Title 28 U.S.C. § 2254(d) sets forth the following standards for granting federal habeas
corpus relief:
12
An application for a writ of habeas corpus on behalf of a
person in custody pursuant to the judgment of a State court shall not
be granted with respect to any claim that was adjudicated on the
merits in State court proceedings unless the adjudication of the
claim -
13
14
15
(1) resulted in a decision that was contrary to, or involved
an unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States; or
16
17
18
(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the
State court proceeding.
19
For purposes of applying § 2254(d)(1), “clearly established federal law” consists of
20
holdings of the United States Supreme Court at the time of the last reasoned state court decision.
21
Greene v. Fisher, ___ U.S. ___, 132 S. Ct. 38, 44 (2011); Stanley v. Cullen, 633 F.3d 852, 859
22
(9th Cir. 2011) (citing Williams v. Taylor, 529 U.S. 362, 405-06 (2000)). Circuit court precedent
23
“may be persuasive in determining what law is clearly established and whether a state court
24
applied that law unreasonably.” Stanley, 633 F.3d at 859 (quoting Maxwell v. Roe, 606 F.3d 561,
25
567 (9th Cir. 2010)). However, circuit precedent may not be “used to refine or sharpen a general
26
principle of Supreme Court jurisprudence into a specific legal rule that th[e] [Supreme] Court has
27
28
3
Justice Corrigan would have retained the matter for decision by the California Supreme Court.
Id.
7
1
not announced.” Marshall v. Rodgers, ___ U.S. ___, ___, 133 S. Ct. 1446, 1450 (2013) (citing
2
Parker v. Matthews, ___ U.S. ___, ___, 132 S. Ct. 2148, 2155 (2012)). Nor may it be used to
3
“determine whether a particular rule of law is so widely accepted among the Federal Circuits that
4
it would, if presented to th[e] [Supreme] Court, be accepted as correct. Id. Further, where courts
5
of appeals have diverged in their treatment of an issue, it cannot be said that there is “clearly
6
established Federal law” governing that issue. Carey v. Musladin, 549 U.S. 70, 77 (2006).
7
A state court decision is “contrary to” clearly established federal law if it applies a rule
8
contradicting a holding of the Supreme Court or reaches a result different from Supreme Court
9
precedent on “materially indistinguishable” facts. Price v. Vincent, 538 U.S. 634, 640 (2003).
10
Under the “unreasonable application” clause of § 2254(d)(1), a federal habeas court may grant the
11
writ if the state court identifies the correct governing legal principle from the Supreme Court‟s
12
decisions, but unreasonably applies that principle to the facts of the prisoner‟s case. 4 Lockyer v.
13
Andrade, 538 U.S. 63, 75 (2003); Williams, 529 U.S. at 413; Chia v. Cambra, 360 F.3d 997, 1002
14
(9th Cir. 2004). A federal habeas court “may not issue the writ simply because that court
15
concludes in its independent judgment that the relevant state-court decision applied clearly
16
established federal law erroneously or incorrectly. Rather, that application must also be
17
unreasonable.” Williams, 529 U.S. at 412. See also Schriro v. Landrigan, 550 U.S. 465, 473
18
(2007); Lockyer, 538 U.S. at 75 (it is “not enough that a federal habeas court, in its independent
19
review of the legal question, is left with a „firm conviction‟ that the state court was „erroneous.‟”)
20
“A state court‟s determination that a claim lacks merit precludes federal habeas relief so long as
21
„fairminded jurists could disagree‟ on the correctness of the state court‟s decision.” Harrington v.
22
Richter, 562 U.S. 86,___,131 S. Ct. 770, 786 (2011) (quoting Yarborough v. Alvarado, 541 U.S.
23
652, 664 (2004)). Accordingly, “[a]s a condition for obtaining habeas corpus from a federal
24
court, a state prisoner must show that the state court‟s ruling on the claim being presented in
25
federal court was so lacking in justification that there was an error well understood and
26
4
27
28
Under § 2254(d)(2), a state court decision based on a factual determination is not to be
overturned on factual grounds unless it is “objectively unreasonable in light of the evidence
presented in the state court proceeding.” Stanley, 633 F.3d at 859 (quoting Davis v. Woodford,
384 F.3d 628, 638 (9th Cir. 2004)).
8
1
comprehended in existing law beyond any possibility for fairminded disagreement.” Richter, 131
2
S. Ct. at 786-87.
3
If the state court‟s decision does not meet the criteria set forth in § 2254(d), a reviewing
4
court must conduct a de novo review of a habeas petitioner‟s claims. Delgadillo v. Woodford,
5
527 F.3d 919, 925 (9th Cir. 2008); see also Frantz v. Hazey, 533 F.3d 724, 735 (9th Cir. 2008)
6
(en banc) (“[I]t is now clear both that we may not grant habeas relief simply because of §
7
2254(d)(1) error and that, if there is such error, we must decide the habeas petition by considering
8
de novo the constitutional issues raised.”).
9
The court looks to the last reasoned state court decision as the basis for the state court
10
judgment. Stanley, 633 F.3d at 859; Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004).
11
If the last reasoned state court decision adopts or substantially incorporates the reasoning from a
12
previous state court decision, this court may consider both decisions to ascertain the reasoning of
13
the last decision. Edwards v. Lamarque, 475 F.3d 1121, 1126 (9th Cir. 2007) (en banc). “When a
14
federal claim has been presented to a state court and the state court has denied relief, it may be
15
presumed that the state court adjudicated the claim on the merits in the absence of any indication
16
or state-law procedural principles to the contrary.” Richter, 131 S. Ct. at 784-85. This
17
presumption may be overcome by a showing “there is reason to think some other explanation for
18
the state court‟s decision is more likely.” Id. at 785 (citing Ylst v. Nunnemaker, 501 U.S. 797,
19
803 (1991)). Similarly, when a state court decision on a petitioner‟s claims rejects some claims
20
but does not expressly address a federal claim, a federal habeas court must presume, subject to
21
rebuttal, that the federal claim was adjudicated on the merits. Johnson v. Williams, ___ U.S. ___,
22
___, 133 S. Ct. 1088, 1091 (2013).
23
Where the state court reaches a decision on the merits but provides no reasoning to
24
support its conclusion, a federal habeas court independently reviews the record to determine
25
whether habeas corpus relief is available under § 2254(d). Stanley, 633 F.3d at 860; Himes v.
26
Thompson, 336 F.3d 848, 853 (9th Cir. 2003). “Independent review of the record is not de novo
27
review of the constitutional issue, but rather, the only method by which we can determine whether
28
a silent state court decision is objectively unreasonable.” Himes, 336 F.3d at 853. Where no
9
1
reasoned decision is available, the habeas petitioner still has the burden of “showing there was no
2
reasonable basis for the state court to deny relief.” Richter, 131 S. Ct. at 784.
A summary denial is presumed to be a denial on the merits of the petitioner‟s claims.
3
4
Stancle v. Clay, 692 F.3d 948, 957 & n. 3 (9th Cir. 2012). While the federal court cannot analyze
5
just what the state court did when it issued a summary denial, the federal court must review the
6
state court record to determine whether there was any “reasonable basis for the state court to deny
7
relief.” Richter, 131 S. Ct. at 784. This court “must determine what arguments or theories . . .
8
could have supported, the state court‟s decision; and then it must ask whether it is possible
9
fairminded jurists could disagree that those arguments or theories are inconsistent with the
10
holding in a prior decision of [the Supreme] Court.” Id. at 786. The petitioner bears “the burden
11
to demonstrate that „there was no reasonable basis for the state court to deny relief.‟” Walker v.
12
Martel, 709 F.3d 925, 939 (9th Cir. 2013) (quoting Richter, 131 S. Ct. at 784).
When it is clear, however, that a state court has not reached the merits of a petitioner‟s
13
14
claim, the deferential standard set forth in 28 U.S.C. § 2254(d) does not apply and a federal
15
habeas court must review the claim de novo. Stanley, 633 F.3d at 860; Reynoso v. Giurbino, 462
16
F.3d 1099, 1109 (9th Cir. 2006); Nulph v. Cook, 333 F.3d 1052, 1056 (9th Cir. 2003).
17
III. Petitioner’s Claims
18
A. Confrontation Clause
19
In petitioner‟s first ground for relief, he claims that his “Sixth Amendment right to
20
confrontation and his Fifth and Fourteenth Amendment right to due process were violated by Dr.
21
Omalu‟s testimony to the autopsy based upon the report and conclusions of non-testifying
22
autopsy pathologist Dr. Pakdaman.” (ECF No. 1 at 5.)5 Petitioner notes that Dr. Omalu “did not
23
conduct the autopsy and did not personally observe the body.” (Id.) He also observes that the
24
prosecutor did not establish that Dr. Pakdaman was unavailable to testify, nor did he otherwise
25
explain why he elected to call Dr. Omalu and not Dr. Pakdaman as a witness to testify about the
26
autopsy results. (Id.) Petitioner argues that Dr. Omalu “served as a conduit for testimonial
27
28
5
Page number citations such as this one are to the page numbers reflected on the court‟s
CM/ECF system and not to page numbers assigned by the parties.
10
1
hearsay and was not rendering an independent expert opinion at trial.” (Id.) Petitioner concludes
2
that “the denial of the opportunity to cross-examine and confront autopsy pathologist Dr.
3
Pakdaman regarding his autopsy observations and conclusions violated the Confrontation Clause
4
of the Sixth Amendment as applied to the states via the Fourteenth Amendment.” (Id.)
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
1. State Court Decision
The California Court of Appeal for the Third Appellate District rejected these arguments,
reasoning as follows:
The Medical Examiner's Testimony Did Not Violate
Defendant’s Constitutional Right To Confront The Witnesses
Against Him
On appeal, defendant asserts for the first time that “Dr. Omalu‟s
testimony on the basis of non-testifying autopsy pathologist Dr.
Pakdaman's report, findings, and conclusions violated the Sixth
Amendment Confrontation Clause.” We disagree.
As an initial matter, the People contend defendant forfeited this
claim of error by failing to raise it in the trial court. “It is, of
course, „the general rule that questions relating to the admissibility
of evidence will not be reviewed on appeal in the absence of a
specific and timely objection in the trial court on the ground sought
to be urged on appeal.‟” (People v. Benson (1990) 52 Cal.3d 754,
786, fn. 7, quoting People v. Rogers (1978) 21 Cal.3d 542, 548.)
Defendant contends the rule of forfeiture (or waiver) does not apply
because an objection to Dr. Omalu‟s testimony on confrontation
clause grounds would have been futile. According to defendant,
Dr. Omalu‟s testimony was admissible under a California Supreme
Court decision in effect when Dr. Omalu testified – People v. Geier
(2007) 41 Cal.4th 555 – and thus an objection would have been
futile, but a subsequent United States Supreme Court decision –
Melendez-Diaz v. Massachusetts (2009) 557 U.S. ---- [174 L.Ed.2d
314] – now “directly contradicts the California Supreme Court‟s
interpretation of the federal [C]onstitution‟s Sixth Amendment
Confrontation Clause.”
The futility cases defendant cites do not address evidentiary
objections, which, by statute, must be made in the trial court or
forfeited. (See Evid.Code, § 353 [“A verdict or finding shall not be
set aside, nor shall the judgment or decision based thereon be
reversed, by reason of the erroneous admission of evidence unless:
[¶] (a) There appears of record an objection to or a motion to
exclude or to strike the evidence that was timely made and so stated
as to make clear the specific ground of the objection or motion”].)
Moreover, as the People point out, while the trial court may have
been bound by Geier, an objection in the trial court still would have
“preserve[d] [the issue] for ultimate federal review.”
11
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
Even if we can review defendant‟s confrontation clause argument
despite his failure to raise it in the trial court, for the following
reasons we find no merit in it.
In Crawford v. Washington (2004) 541 U.S. 36 [158 L.Ed.2d 177],
the United States Supreme Court held that under the Sixth
Amendment, which guarantees a criminal defendant “„the right . . .
to be confronted with the witnesses against him,‟” an out-of-court
statement that is “testimonial” in nature cannot be admitted into
evidence over the defendant‟s objection unless the person who
made the statement is unavailable to testify at trial and the
defendant had a prior opportunity for cross-examination. (541 U .S.
at pp. 42, 68-69 [158 L.Ed.2d at pp. 187, 203].) The court declined
“to spell out a comprehensive definition of „testimonial,‟” but stated
that “it applies at a minimum to prior testimony at a preliminary
hearing, before a grand jury, or at a former trial; and to police
interrogations.” (Id. at p. 68 [158 L.Ed.2d at p. 203].)
In Davis v. Washington (2006) 547 U.S. 813 [165 L.Ed.2d 224],
which also included a second case, Hammon v. Indiana, the court
qualified the latter part of Crawford, holding that “[s]tatements are
nontestimonial when made in the course of police interrogation
under circumstances objectively indicating that the primary purpose
of the interrogation is to enable police assistance to meet an
ongoing emergency. They are testimonial when the circumstances
objectively indicate that there is no such ongoing emergency, and
that the primary purpose of the interrogation is to establish or prove
past events potentially relevant to later criminal prosecution.” (Id.
at p. 822 [165 L.Ed.2d at p. 237].) Based on this holding, the court
concluded the statement at issue in Davis was not testimonial, but
the statements at issue in Hammon were. (Davis, at pp. 828-832
[165 L.Ed.2d at pp. 240-243].)
17
18
19
20
21
22
23
24
25
26
27
28
Justice Thomas concurred in the judgment in part and dissented in
part, agreeing with the conclusion about the statement in Davis but
disagreeing about the statement in Hammon.
(Davis v.
Washington, supra, 547 U.S. at pp. 834, 842 [165 L.Ed.2d at pp.
244-245, 249].) According to Justice Thomas, the standard the
court adopted was “neither workable nor a targeted attempt to reach
the abuses forbidden by the [Confrontation] Clause.” (Id. at p. 842
[165 L.Ed.2d at p. 249].) Drawing on his own concurrence in
White v. Illinois (1992) 502 U.S. 346, 365 [116 L.Ed.2d 848, 865],
Justice Thomas stated that “the plain terms of the „testimony‟
definition [the court adopted in Crawford ] necessarily require some
degree of solemnity before a statement can be deemed
„testimonial,‟” and “[t]his requirement of solemnity supports [his]
view that the statements regulated by the Confrontation Clause
must include „extrajudicial statements . . . contained in formalized
testimonial materials, such as affidavits, depositions, prior
testimony, or confessions.‟” (Davis v. Washington, supra, 547 U.S.
at p. 836 [165 L.Ed.2d at p. 246].)
In 2009, in Melendez-Diaz, the court faced the question of whether
“affidavits reporting the results of forensic analysis which showed
that material seized by the police and connected to the defendant
12
was cocaine . . . are „testimonial,‟ rendering the affiants „witnesses‟
subject to the defendant‟s right of confrontation under the Sixth
Amendment.” (Melendez-Diaz v. Massachusetts, supra, 557 U.S.
at p. ---- [174 L.Ed.2d at p. 319].) Led by Justice Scalia, four
members of the court concluded “[t]here is little doubt that the
documents at issue in this case fall within the „core class of
testimonial statements.‟” (Id. at p. ---- [174 L.Ed.2d at p. 321].)
Another four members disagreed, concluding “[l]aboratory analysts
who conduct routine scientific tests are not the kind of conventional
witnesses to whom the Confrontation Clause refers.” (Id. at p. ---[174 L.Ed.2d at p. 350], dis. opn. of Kennedy, J.) Justice Thomas
concurred with Justice Scalia‟s opinion, but wrote “separately to
note that [he] continue[s] to adhere to [his] position that „the
Confrontation Clause is implicated by extrajudicial statements only
insofar as they are contained in formalized testimonial materials,
such as affidavits, depositions, prior testimony, or confessions.‟”
(Id. at p. ---- [174 L.Ed.2d at p. 333].) He explained that he
“join[ed] the Court‟s opinion in this case because the documents at
issue in this case „are quite plainly affidavits,‟” and “[a]s such, they
„fall within the core class of testimonial statements‟ governed by
the Confrontation Clause.”6 (Ibid.)
1
2
3
4
5
6
7
8
9
10
11
12
With this understanding of the current state of the law in mind, we
turn to defendant‟s arguments. He contends that under MelendezDiaz, “when the States seeks [sic] to introduce forensic analysis in
the form of testimony regarding an autopsy report, absent a
showing that the analyst is unavailable to testify at trial and that the
defendant had a prior opportunity to cross-examine the analyst,
such evidence is inadmissible.” We disagree.
13
14
15
16
In addressing this issue, it is important to emphasize that Crawford
and Melendez-Diaz address the issue of when an out-of-court
statement that is “testimonial” in nature can be admitted into
evidence. Thus, the first step in any analysis under those cases is to
determine exactly what out-of-court statement was admitted into
evidence. Defendant skips that step here. While he asserts “the
admission of Dr. Omalu‟s testimony conveying testimonial hearsay
of non-testifying autopsy pathologist Dr. Pakdaman violated the
Sixth Amendment Confrontation Clause,” he never identifies
exactly what part or parts of Dr. Omalu‟s testimony he contends
“convey[ed] testimonial hearsay of . . . Dr. Pakdaman .” For the
sake of argument, however, we will assume that defendant‟s
confrontation clause objection applies to every instance in which
17
18
19
20
21
22
23
/////
24
/////
25
6
26
27
28
The California Supreme Court has granted review in several cases discussing the scope of
Melendez-Diaz. (People v. Rutterschmidt (2009) 176 Cal.App.4th 1047, review granted Dec. 2,
2009, S176213; People v. Dungo (2009) 176 Cal.App.4th 1388, review granted Dec. 2, 2009,
S176886; People v. Lopez (2009) 177 Cal.App.4th 202, review granted Dec. 2, 2009, S177046;
People v. Gutierrez (2009) 177 Cal.App.4th 654, review granted Dec. 2, 2009, S176620.)
13
1
Dr. Omalu testified to statements of Dr. Pakdaman contained in the
autopsy report.7
2
Referencing a footnote in Justice Scalia's opinion (Melendez-Diaz
v. Massachusetts, supra, 557 U.S. at p. ----, fn. 5 [174 L.Ed.2d at p.
326, fn. 5] ), defendant asserts that “the United States Supreme
Court in Melendez-Diaz specifically referenced autopsy
examinations as one kind of forensic analysis that constitutes a
testimonial statement to which the forensic analyst is a witness and
to which the Confrontation Clause applies.” Even assuming this to
be true, however, in understanding the Supreme Court‟s holding in
Melendez-Diaz it is necessary to distinguish between the
conclusions and observations in Justice Scalia‟s opinion and the
conclusions and observations in Justice Thomas‟s opinion, because
“[w]hen a fragmented Court decides a case and no single rationale
explaining the result enjoys the assent of five Justices, „the holding
of the Court may be viewed as that position taken by those
Members who concurred in the judgments on the narrowest grounds
. . . .‟” (Marks v. United States (1977) 430 U.S. 188, 193 [51
L.Ed.2d 260, 266].)
3
4
5
6
7
8
9
10
11
As we have explained, in his opinion, Justice Scalia concluded “that
the documents at issue in this case fall within the „core class of
testimonial statements.‟” (Melendez-Diaz v. Massachusetts, supra,
557 U.S. at p. ---- [174 L.Ed.2d at p. 321].) The “documents at
issue” were not simply forensic laboratory reports, however, but
“„certificates of analysis‟” that “were sworn to before a notary
public.” (Id. at p. ---- [174 L.Ed.2d at p. 320].) This was
significant to Justice Scalia‟s analysis because although the
documents were “denominated by Massachusetts law „certificates,‟
[they we]re quite plainly affidavits: „declaration[s] of facts written
down and sworn to by the declarant before an officer authorized to
administer oaths,‟” and thus were “functionally identical to live, incourt testimony, doing „precisely what a witness does on direct
examination.‟” (Id. at p. ---- [174 L.Ed.2d at p. 321].) This fact
was also significant to Justice Thomas, who concurred in Justice
Scalia‟s opinion only because the “certificates” were “„quite plainly
affidavits,‟” and “[a]s such, they „fall within the core class of
testimonial statements' governed by the Confrontation Clause.” (Id.
at p. ---- [174 L.Ed.2d at p. 333].)
12
13
14
15
16
17
18
19
20
21
Whatever broader ideas about what constitutes a “testimonial”
statement may be drawn from Justice Scalia‟s opinion in MelendezDiaz, under Marks the holding of the court in Melendez-Diaz can
be found in Justice Thomas‟s conclusion that “„the Confrontation
Clause is implicated by extrajudicial statements only insofar as they
are contained in formalized testimonial materials, such as affidavits,
depositions, prior testimony, or confessions.‟” (Melendez-Diaz v.
Massachusetts, supra, 557 U.S. at p. ---- [174 L.Ed.2d at p. 333].)
22
23
24
25
26
27
28
7
For example, Dr. Omalu testified that “in the autopsy report [Dr. Pakdaman] documented he
examined some articles of clothing” and “described an article of clothing that exhibited evidence
of gunshot wounds on the body.”
14
1
Based on this understanding of Melendez-Diaz, the trial court did
not err in admitting Dr. Omalu‟s testimony regarding statements
made by Dr. Pakdaman in his autopsy report because the autopsy
report was not formalized testimonial material, like an affidavit,
deposition, prior testimony, or confession. Under Government
Code section 27491.4, subdivision (a) “[t]he detailed medical
findings resulting from an inspection of the body or autopsy by an
examining physician shall be either reduced to writing or
permanently preserved on recording discs or other similar recording
media, shall include all positive and negative findings pertinent to
establishing the cause of death in accordance with medicolegal
practice and this, along with the written opinions and conclusions of
the examining physician, shall be included in the coroner‟s record
of the death.” Thus, the autopsy report is clearly a government
record, but that does not make it “formalized testimonial material,”
as Justice Thomas employs that term. Accordingly, the statements
contained in the autopsy report here were not “testimonial” for
purposes of the confrontation clause, and the admission of Dr.
Omalu‟s testimony about those statements did not violate
defendant's rights under the Sixth Amendment.
2
3
4
5
6
7
8
9
10
11
12
Thompson, 2010 WL 4493478, at *5-8.
2. Applicable Law
13
The Sixth Amendment to the United States Constitution grants a criminal defendant the
14
15
right “to be confronted with the witnesses against him.” U.S. Const. amend. VI. “The „main and
16
essential purpose of confrontation is to secure for the opponent the opportunity of cross-
17
examination.‟” Fenenbock v. Director of Corrections for California, 692 F.3d 910, 919 (9th Cir.
18
2012) (quoting Delaware v. Van Arsdall, 475 U.S. 673, 678 (1986)). The Confrontation Clause
19
applies to the states through the Fourteenth Amendment. Pointer v. Texas, 380 U.S. 400, 406
20
(1965).
21
As recognized by the California Court of Appeal in its opinion affirming petitioner‟s
22
judgment of conviction, in 2004 the United States Supreme Court held that “a defendant‟s
23
Confrontation Clause rights are violated by the admission of „testimonial statements of a witness
24
who did not appear at trial unless he was unavailable to testify, and the defendant had . . . a prior
25
opportunity for cross-examination.‟” United States v. Vera, 770 F.3d 1232, 1237 (9th Cir. 2014)
26
(quoting Crawford v. Washington, 541 U.S. 36, 53-54 (2004)). The Crawford rule applies only to
27
hearsay statements that are “testimonial” in nature and does not bar the admission of non-
28
testimonial hearsay statements. Crawford, 541 U.S at 42, 51, 68. See also Whorton v. Bockting,
15
1
549 U.S. 406, 420 (2007) (“the Confrontation Clause has no application to” an “out-of-court
2
nontestimonial statement.”) “Nevertheless, an expert witness may offer opinions based on such
3
inadmissible testimonial hearsay, as well as any other form of inadmissible evidence, if „experts
4
in the particular field would reasonably rely on those kinds of facts or data in forming an opinion
5
on the subject.‟” Vera, 770 F.3d at 1237 (quoting Fed. R. Evid. 703). See also Lopez v. Horel,
6
Civ. No. 07-4169, 2011 WL 940054, at *11 (C.D. Cal. Jan. 19, 2011) (“Thus, Crawford does not
7
undermine the established rule that experts can testify to their opinions on relevant matters and
8
may relate the information and sources upon which they rely in forming those opinions.”) (citing
9
Ortiz v. Tilton, Civ. No. 06-1752, 2008 WL 2543440, at *14, 16 (S.D. Cal. May 5, 2008), report
10
11
and recommendation adopted by, 2009 WL 1796537 (S.D. Cal. Jun. 23, 2009)).
Although the Supreme Court in Crawford declined to provide a comprehensive definition
12
of the term “testimonial,” it did state that “[s]tatements taken by police officers in the course of
13
interrogations are . . . testimonial under even a narrow standard.” Crawford, 541 U.S. at 52. The
14
court also provided the following “formulations” of a “core class” of testimonial statements: (1)
15
“ex parte in-court testimony or its functional equivalent – that is, material such as affidavits,
16
custodial examinations, prior testimony that the defendant was unable to cross-examine, or
17
similar pretrial statements that declarants would reasonably expect to be used prosecutorially;”
18
(2) “extrajudicial statements . . . contained in formalized testimonial materials, such as affidavits,
19
depositions, prior testimony, or confessions;” and (3) “statements that were made under
20
circumstances which would lead an objective witness reasonably to believe that the statement
21
would be available for use at a later trial.” Id. at 51-52.
22
More than five years after Crawford was decided, in Melendez-Diaz v. Massachusetts,
23
557 U.S. 305 (2009), the Supreme Court held that “a forensic laboratory report ranked as
24
testimonial for purposes of the Confrontation Clause.” Flourney v. Small, 681 F.3d 1000, 1005
25
(9th Cir. 2012), cert. denied, ___U.S.___, 133 S. Ct. 880 (2013). Specifically, the Supreme Court
26
in Melendez-Diaz extended the reasoning in Crawford to sworn “certificates of analysis” which
27
confirmed that the substance seized from the defendant was cocaine. The Supreme Court held
28
that a sworn certificate of analysis was “testimonial” and could not be admitted into evidence
16
1
absent the testimony of the person who performed the tests. Melendez-Diaz, 557 U.S. at 318.
2
The Supreme Court rejected the argument that such certificates were business records and
3
therefore admissible pursuant to the business records exception to the hearsay rule. Id. at 321.
4
3. Analysis
Before addressing petitioner‟s claim under the Confrontation Clause, this court must
5
6
determine in this particular case what constitutes “clearly established Federal law, as determined
7
by the Supreme Court of the United States,” for purposes of AEDPA review. See Lockyer, 538
8
U.S. at 71; 28 U.S.C. § 2254(d). “Clearly established Federal law” includes only Supreme Court
9
decisions as of the time the state court renders its decision on the merits of petitioner‟s claims, not
10
those decisions as of the time the petitioner‟s conviction becomes final. Greene, 132 S. Ct. at 44;
11
see also Meras v. Sisto, 676 F.3d 1184, 1187 (9th Cir. 2012). Here, the last state court
12
adjudication on the merits of petitioner‟s Confrontation Clause claim was the November 20, 2010
13
opinion of the California Court of Appeal.
Accordingly, that opinion is the operative decision for this federal habeas court‟s review
14
15
of petitioner‟s Confrontation Clause claim under AEDPA. The California Supreme Court‟s later
16
decisions, which resulted in an order dismissing review of petitioner‟s claims, was not an
17
adjudication on the merits of those claims and therefore does not constitute the relevant decision
18
or date of decision to which the “clearly established Federal law” criterion must be applied. See
19
Greene, 132 S. Ct. at *44-45 (noting that a decision by a state supreme court not to hear an appeal
20
of petitioner‟s claims – “that is, not to decide at all” – does not constitute the relevant “decision”
21
for purposes of § 2254(d)); Meras, 676 F.3d at 1187 (Melendez–Diaz did not constitute clearly
22
established federal law where it was decided after last state court adjudication on merits);
23
Flournoy, 681 F.3d at 1004–05 (same), In light of this, the subsequent decisions of the United
24
States Supreme Court in Bullcoming v. New Mexico, ___ U.S. ___, ___, 131 S. Ct. 2705, 2707
25
(2011) and Williams v. Illinois, 567 U.S. ___, ___, 132 S. Ct. 2221, 2228 (2012), issued after the
26
California Court of Appeal‟s November 10, 2010 decision in petitioner‟s case, have no bearing on
27
this court‟s analysis of whether petitioner is entitled to federal habeas relief with respect to his
28
/////
17
1
Confrontation Clause claim.8 Id. Instead, the question before this court is whether the November
2
20, 2010 decision of the California Court of Appeal with respect to petitioner‟s Confrontation
3
Clause claim was contrary to or an unreasonable application of federal law when it was issued in
4
light of the decisions of the United States Supreme Court in Crawford and/or Melendez-Diaz.9
5
After a thorough analysis of relevant federal law, the California Court of Appeal
6
concluded that the trial court did not violate petitioner‟s Sixth Amendment in admitting Medical
7
Examiner Dr. Omalu‟s trial testimony regarding statements made by Dr. Pakdaman in his autopsy
8
report. For the reasons set forth below, the undersigned concludes that decision was not contrary
9
to or an unreasonable application of the Supreme Court‟s rulings in either Crawford or Melendez-
10
Diaz and therefore should not be set aside. See Moses v. Payne, 555 F.3d 742, 754 (9th Cir.
11
2009) (when a Supreme Court decision does not “squarely address[ ] the issue in th[e] case” or
12
establish a legal principle that “clearly extend[s]” to a new context, “it cannot be said, under
13
AEDPA, there is „clearly established‟ Supreme Court precedent addressing the issue before us,
14
and so we must defer to the state court's decision”); Brewer v. Hall, 378 F.3d 952, 955 (9th Cir.
15
2004) (“If no Supreme Court precedent creates clearly established federal law relating to the legal
16
issue the habeas petitioner raised in state court, the state court‟s decision cannot be contrary to or
17
an unreasonable application of clearly established federal law”).
18
/////
19
20
21
22
23
24
25
26
27
28
8
In Bullcoming, the Supreme Court held that the admission into evidence of a forensic lab
prepared by a non-testifying analyst through the “surrogate testimony” of the analyst‟s colleague
who had neither performed nor observed the testing procedure violated the Confrontation Clause.
131 S. Ct. at 2710, 2715-16. Thereafter, in Williams, the Supreme Court held that an expert‟s
testimony referring to a DNA profile as having been produced from semen found on the victim
did not violate the Confrontation Clause because an expert may express an opinion that is based
on facts that the expert assumes, but does not know, to be true. 132 S. Ct. at 2228.
9
In Greene, the Supreme Court had left open the question of “[w]hether § 2254(d)(1) would bar
a federal habeas petitioner from relying on a decision that came after the last state-court
adjudication on the merits, but fell within one of the exceptions recognized in Teague, 489 U.S. at
311, 109 S. Ct. 1060.” 132 S. Ct. at 44 n.* See also Teague v. Lane, 489 U.S. 288, 311 (1989)
(“[A] new rule should be applied retroactively if it places certain kinds of primary, private
individual conduct beyond the power of the criminal law” or constitutes a “watershed rule[ ] of
criminal procedure.” (internal quotation marks omitted)). Here, petitioner does not argue that the
decisions in Bullcoming or Williams fall within one of Teague‟s exceptions.
18
1
First, the decision of the state appellate court was not contrary to the holding in Crawford.
2
After Crawford was decided but prior to the Supreme Court‟s decision in Melendez-Diaz, it was
3
certainly not “clearly established” federal law that forensic reports were testimonial in nature.
4
See Meras, 676 F.3d at 1188-89 (recognizing that whether forensic lab reports were testimonial in
5
nature was an area of uncertainty over which federal appellate courts were divided sharply in the
6
wake of the decision in Crawford); see also Flournoy, 681 F.3d at 1004–05 (finding that it was
7
not an unreasonable application of the decision in Crawford to admit the testimony of an expert
8
witness regarding reports prepared by others where the witness‟ opinion was based on reports
9
which she had peer reviewed and where the reports had been admitted as business records).
10
Accordingly, the California Court of Appeal‟s conclusion that the autopsy report at issue here was
11
not “testimonial” in nature was not contrary to or an unreasonable application of federal law as
12
set forth in Crawford. Meras, 676 F.3d at 1188-89; see also Flournoy, 681 F.3d at 1004–05;
13
McNeiece v. Lattimore, 501 Fed. Appx. 634, 2012 WL 6757956 (9th Cir. Dec. 18, 2012) (holding
14
that a state court determination that petitioner‟s rights under the Confrontation Clause were not
15
violated when the trial court admitted excerpts of an autopsy report into evidence through the
16
testimony of a pathologist who had not conducted autopsy and where the pathologist testified in
17
reliance on the autopsy report, was not contrary to or an unreasonable application of Crawford
18
and that the state court‟s decision that the autopsy report was a non-testimonial business record
19
was not based on an unreasonable determination of the facts) 10; Kruger v. Katavich, No. SACV–
20
12–1006–SVW (VBK), 2013 WL 2153954, at *6 (C.D. Cal. May 9, 2013) (“The Supreme Court
21
has never squarely addressed whether an autopsy report is a “testimonial” statement for Crawford
22
purposes.)
Second, the state appellate court‟s decision was also not contrary to the holding in
23
24
Melendez-Diaz. In Melendez-Diaz, a forensic laboratory report in the form of a “certificate of
25
analysis” was admitted into evidence without calling as a witness the analyst who had created the
26
report. The Supreme Court concluded that admission of this certificate violated the defendant‟s
27
28
10
Citation of this unpublished disposition by the Ninth Circuit Court of Appeals is appropriate
pursuant to Fed. R. App. P. 32.1 and U.S. Ct. of App. 9th Cir. Rule 36-3(b).
19
1
right to confrontation. Melendez-Diaz, 557 U.S. at 305. The court reasoned that in the absence
2
of testimony by the analyst himself, the defendant “did not know what tests the analysts
3
performed, whether those tests were routine, and whether interpreting their results required the
4
exercise of judgment or the use of skills that the analysts may not have possessed.” Id. at 320.
5
Here, in contrast, the autopsy report prepared by Dr. Pakdaman appears not to have been
6
admitted into evidence at petitioner‟s trial. (See Clerk‟s Transcript on Appeal (CT) at 478-88
7
(record of the People‟s exhibits)). Rather, Dr. Omalu merely testified at trial regarding his own
8
independent opinion as a forensic pathologist as to the circumstances and cause of the victim‟s
9
death. (Reporter‟s Transcript on Appeal (RT) at 918-19.) Dr. Omalu‟s opinions were based on
10
the autopsy photographs, the autopsy report, the photographs of the scene of the crime, his own
11
examination of the physical evidence, his personal experience, or on a combination of these and
12
other matters. (See, e.g., id. at 921-39, 950-54.) Although Dr. Omalu‟s conclusions were the
13
same as those reached by Dr. Pakdaman in the autopsy report, Dr. Omalu testified that it was
14
common for him to disagree with other pathologists‟ reports due, in part, to his specialized and
15
additional knowledge. (Id. at 954.) Dr. Omalu was also extensively cross-examined by
16
petitioner‟s trial counsel at trial. All of these facts distinguish this case from those confronted by
17
the Supreme Court in Melendez-Diaz. See Meras, 676 F.3d at 1190 (noting that “Melendez-Diaz
18
involved a lab report submitted without live testimony, whereas Meras‟s case has the added
19
complication that the report was introduced through the testimony of the author‟s supervisor.”);
20
Flournoy, 681 F.3d at 1002 (noting that in Melendez-Diaz the Supreme Court “held only that a
21
lab report could not be admitted without a witness appearing to testify in person”).
22
Because of these distinctions, the conclusion of the California Court of Appeal that the
23
trial testimony of Dr. Omalu did not violate petitioner‟s Confrontation Clause rights was also not
24
contrary to or an unreasonable application of the Supreme Court‟s holding in Melendez-Diaz.
25
See Gauldin v. Cate, No. 12-CV-791-LAB-RBB, 2014 WL 4607838, at * (S.D. Cal. Sept. 15,
26
2014) (testimony of analyst about the contents of a DNA report prepared by a different analysis
27
did not violate the Confrontation Clause and the state court opinion to that effect was not contrary
28
to the holding in Melendez-Diaz); Graham v. Nash, No. CV 11-5723-DDP (OP), 2013 WL
20
1
3982271 at *15–17 (C.D. Cal. July 30, 2013) (“Because Melendez–Diaz dealt with the use of
2
affidavits instead of testimony, and this case dealt with the in-court testimony of a DNA expert, a
3
supervisor who actually conducted the analysis and reached an independent conclusion about the
4
DNA tests, the court of appeal‟ decision did not involve an unreasonable application of
5
Melendez–Diaz.”); see also Wise v. Neotti, Case No. CV 11-6303-MMM (AJW), 2012 U.S. Dist.
6
LEXIS 160684 at *15 (C.D. Cal. Apr. 27, 2012) (“[F]airminded jurists could disagree about
7
whether Melendez–Diaz precluded the live testimony of a laboratory supervisor who reviewed
8
and signed a report prepared by another analyst.”).
Indeed, even after the Supreme Court‟s decision in Bullcoming and Williams, it has been
9
10
recognized that there remains no clearly established federal law answering the question of the
11
degree to which an expert witness may rely and comment upon the out-of-court conclusions
12
reflected in lab report which were reached by one who is not called as a witness. See United
13
States v. Pablo, 696 F.3d 1280, 1293 (10th Cir. 2012): Nardi v. Pope, 662 F.3d 107, 112 (1st Cir.
14
2011) (“Even now [in the wake of Bullcoming] it is uncertain whether, under its primary purpose
15
test, the Supreme Court would classify autopsy reports as testimonial.”); see also Kruger, 2013
16
WL 2153954, at *7 (In the aftermath of Bullcoming and Williams there remains “no Supreme
17
Court precedent which clearly contradicts the California Court of Appeal‟s conclusion that Dr.
18
Juguilon could offer his expert opinion on the cause of death based on Dr. Halka‟s autopsy
19
report.”)
20
Here, the California Court of Appeal concluded, after a careful analysis of federal law at
21
the time, that the autopsy report at issue here did not fall within the “core class of testimonial
22
statements” described by the United States Supreme Court in Crawford and Melendez-Diaz.
23
Specifically, the state appellate court noted that the autopsy report in petitioner‟s case had not
24
been sworn to before a notary, nor was it “formalized testimonial material, like an affidavit,
25
deposition, prior testimony, or confession.” Thompson, 2010 WL 4493478, at *7-8. Reaching
26
this conclusion was not objectively unreasonable, given pronouncements in several United States
27
Supreme Court decisions to the effect that only formal, sworn documents constitute “testimonial
28
/////
21
1
statements.”11 Under these circumstances, the undersigned “cannot say that the state court
2
unreasonably applied clearly established Federal law” in concluding that the autopsy report at
3
issue here was not “testimonial.” See Bailey v. Newland, 263 F.3d 1022, 1032 (9th Cir. 2001)
4
(where there was a difference of opinion between lower federal courts with regard to the issue in
5
that case, the state court‟s decision was not an unreasonable application of clearly established
6
federal law); see also Thompson v. Battaglia, 458 F.3d 614, 619 (7th Cir. 2006) (“The variety in
7
practice among the state courts and the various federal courts shows . . . that there is no standard
8
clearly established by the Supreme Court of the United States that is binding on all); see also
9
Lopez, 55 Cal.4th at 582 (while it is clear that in order to be “testimonial,” an out-of-court
10
statement must have been made with “some degree” or formality or solemnity, “the degree of
11
formality required remains a subject of dispute in the United States Supreme Court”).
12
For all of the foregoing reasons, petitioner is not entitled to federal habeas relief with
13
respect to his claim that the admission of Dr. Omalu‟s testimony at trial violated his rights under
14
the Confrontation Clause.12
15
B. Doyle Error
16
In his next ground for relief, petitioner claims that both his Fifth Amendment right to due
17
process and his Sixth Amendment right to counsel were violated when Detective Rodriguez
18
testified at trial that petitioner made numerous requests for counsel during his police
19
interrogation. (ECF No. 1 at 7.) Petitioner points out that Detective Rodriguez “surprised
20
defense counsel by responding to a question about whether appellant requested medical care by
21
11
22
23
The undersigned also notes that the California Supreme Court has now held that statements in
an autopsy report describing the condition of the murder victim‟s body are not “testimonial,” as
that term is defined by the Supreme Court in the Crawford decision. People v. Dungo, 55 Cal.
4th 608, 627 (2012).
24
12
25
26
27
28
Before addressing petitioner‟s Confrontation Clause claim on the merits, the California Court
of Appeal discussed whether petitioner waived that issue on appeal by failing to object to the
admission of Dr. Omalu‟s testimony at the time it was offered at his trial. Respondent notes,
however, that the state appellate court did not “affirmatively hold that the argument was
forfeited.” (ECF No. 15 at 20.) Respondent therefore “presume[s] that petitioner‟s confrontation
claim is not procedurally defaulted.” (Id.) Accordingly, this court will not address the issue of
procedural default with respect to this claim.
22
1
repeatedly stating that appellant invoked his right to counsel.” (Id.)
2
The California Court of Appeal rejected this argument, reasoning as follows:
On appeal, defendant argues for the first time that “[i]t was . . .
improper for Detective Rodriguez to comment repeatedly that
[defendant] requested counsel in response to every question posed
to him post-arrest.” Defendant asserts that Detective Rodriguez‟s
testimony was “Doyle error” and “violate[d] the Sixth Amendment
right to counsel and the Fifth Amendment right to Procedural Due
Process.”
3
4
5
6
“Doyle v. Ohio . . . held that use, for impeachment purposes, of a
defendant‟s silence at the time of arrest and after receipt of
Miranda13 warnings violates due process. An express assertion of
rights must also be beyond exploitation by the prosecutor.
Otherwise, „[i]t cuts down on the privilege [against selfincrimination] by making its assertion costly‟ [citation]. Doyle,
supra, is not limited to in-custody situations, but is broadly
interpreted to apply to any testimony about a defendant‟s desire or
request for counsel [citation].” (People v. Fabert (1982) 127 Cal.
App.3d 604, 609.)
7
8
9
10
11
12
The People contend defendant forfeited his claim of Doyle error by
failing to object to Detective Rodriguez‟s testimony at trial.
Defendant asserts “[t]he decisional precedent is in conflict on the
question of whether this error is subject to procedural default,” but
he then asks us to “[c]ompare” five California Supreme Court
decisions, dating from 1988 to 2008, in which that court found
forfeiture, with two California Court of Appeal decisions, dating
from 1970 and 1984, in which those courts found no forfeiture.
Under Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d
450, 455, we are bound by the decisions of our Supreme Court, so
for us there is no conflict – defendant‟s claim of Doyle error “was
forfeited for appellate purposes by the lack of a contemporaneous
objection.” (People v. Coffman and Marlow (2004) 34 Cal.4th 1,
63.)
13
14
15
16
17
18
19
20
Even if we were to reach this forfeited argument, it has no merit.
Under Doyle, the prosecutor “is precluded from commenting on the
defendant‟s assertion of the right to counsel.” (People v. Coffman
and Marlow, supra, 34 Cal.4th at p. 65.) Here, the prosecutor
offered no such comment and did not elicit the testimony of which
defendant complains; that testimony was elicited by defense
counsel.
21
22
23
24
Defendant asserts that Doyle applies not only to the prosecutor, but
also to a “prosecution investigator,” but he cites no authority for
that proposition. All the cases he cites involved comment or
questioning by the prosecutor. Absent any authority for the
proposition that testimony by a police officer about the defendant‟s
assertion of the right to counsel, elicited without objection by
25
26
27
28
13
Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694].
23
defense counsel (whether intentionally or not),14 violates the
defendant‟s constitutional rights, we conclude defendant has not
shown Doyle error.
1
2
3
Thompson, 2010 WL 4493478, at *8-9.
4
As set forth above, the California Court of Appeal ruled, in part, that petitioner forfeited
5
his claim of Doyle error because his trial counsel failed to raise a contemporaneous objection to
6
the trial testimony of Detective Rodriguez. Respondent argues the state court‟s finding of waiver
7
based on the lack of a contemporaneous objection constitutes a state procedural bar precluding
8
this court from addressing the merits of petitioner‟s claim of Doyle error. (ECF No. 15 at 22-23).
State courts may decline to review a claim based on a procedural default. Wainwright v.
9
10
Sykes, 433 U.S. 72, 86-87 (1977). As a general rule, a federal habeas court “„will not review a
11
question of federal law decided by a state court if the decision of that court rests on a state law
12
ground that is independent of the federal question and adequate to support the judgment.‟”
13
Calderon v. United States District Court (Bean), 96 F.3d 1126, 1129 (9th Cir. 1996) (quoting
14
Coleman v. Thompson, 501 U.S. 722, 729 (1991)). The state rule is only “adequate” if it is
15
“firmly established and regularly followed.” Id. (quoting Ford v. Georgia, 498 U.S. 411, 424
16
(1991)). See also Bennett v. Mueller, 322 F 3d 573, 583 (9th Cir. 2003) (“[t]o be deemed
17
adequate, the state law ground for decision must be well-established and consistently applied.”)
18
The state rule must also be “independent” in that it is not “interwoven with the federal law.” Park
19
v. California, 202 F.3d 1146, 1152 (9th Cir. 2000) (quoting Michigan v. Long, 463 U.S. 1032,
20
1040-41 (1983)). Even if the state rule is independent and adequate, the claims may be heard if
21
the petitioner can show: (1) cause for the default and actual prejudice as a result of the alleged
22
violation of federal law; or (2) that failure to consider the claims will result in a fundamental
23
miscarriage of justice. Coleman, 501 U.S. at 749-50.
24
/////
25
14
26
27
28
We accept defendant‟s argument that “Detective Rodriguez surprised defense counsel” when
the detective first mentioned that defendant asked for his attorney when the police asked
defendant if he wanted medical care, but it is clear that rather than objecting to and/or moving to
strike the detective‟s unexpected testimony, defense counsel instead chose to ask further
questions on the subject.
24
1
Respondent has met his burden of adequately pleading an independent and adequate state
2
procedural ground as an affirmative defense. See Bennett, 322 F.3d at 586. Petitioner does not
3
deny that his trial counsel failed to raise a contemporaneous objection to Detective Rodriguez‟s
4
testimony on the grounds of Doyle error. Although the state appellate court proceeded to address
5
petitioner‟s Doyle error argument on the merits, it also expressly held that the issue was waived
6
on appeal because of defense counsel‟s failure to object at trial. Petitioner has failed to meet his
7
burden of asserting specific factual allegations that demonstrate the inadequacy of California‟s
8
contemporaneous-objection rule as unclear, inconsistently applied or not well-established, either
9
as a general rule or as applied to him. Bennet, 322 F.3d at 586; Melendez v. Pliler, 288 F.3d
10
1120, 1124-26 (9th Cir. 2002). Petitioner‟s claim of Doyle error therefore appears to be
11
procedurally barred. See Coleman, 501 U.S. at 747; Harris v. Reed, 489 U.S. 255, 264 n.10
12
(1989); Paulino v. Castro, 371 F.3d 1083, 1092-93 (9th Cir. 2004); see also Jackson v. Giurbino,
13
364 F.3d 1002, 1007 (9th Cir. 2004) (declining to address petitioner‟s Doyle error claim because
14
the state court decision that the claim was forfeited by lack of a contemporaneous objection was
15
based on “an independent and adequate state procedural rule” and because petitioner “cites no
16
case to establish that applying waiver to the alleged Doyle violation was contrary to clearly
17
established federal law, as determined by the Supreme Court of the United States”). Petitioner
18
has also failed to demonstrate that there was cause for his procedural default or that a miscarriage
19
of justice would result absent review of the claims by this federal habeas court. See Coleman,
20
501 U.S. at 748; Vansickel v. White, 166 F.3d 953, 957-58 (9th Cir. 1999).
21
Nonetheless, even if this claim were not procedurally barred, the state appellate court‟s
22
decision that Doyle error did not occur in this case is not contrary to or an unreasonable
23
determination of federal law. The United States Supreme Court held in Doyle that the
24
introduction of a defendant‟s post-arrest silence for impeachment purposes during cross-
25
examination by the prosecutor violates due process in cases in which the defendant may have
26
relied on his Miranda warnings in remaining silent. Doyle, 426 U.S. at 618. The court in Doyle
27
reasoned that it would be fundamentally unfair to apprise a defendant that he has the
28
constitutional right to remain silent and then use that silence against him at trial. Id.; see also
25
1
United States v. Negrete-Gonzales, 966 F.2d 1277, 1280-81 (9th Cir. 1992) (finding Doyle error
2
when petitioner was questioned about his “post-Miranda silence”). The essence of the holding in
3
Doyle is that a prosecutor commits prosecutorial misconduct if he attempts to use a defendant‟s
4
post-arrest silence for impeachment purposes. See Greer v. Miller, 483 U.S. 756, 764-65 (1987).
5
Here, the prosecutor did not impeach petitioner with his post-arrest silence. Rather,
6
Detective Rodriguez volunteered during questioning by petitioner‟s own attorney that petitioner
7
had requested counsel during his police interrogation. Petitioner has not cited a United States
8
Supreme Court case holding that a trial witness‟ testimony, unsolicited by the prosecutor, that a
9
criminal defendant had requested counsel and declined to otherwise answer during police
10
questioning violates the holding in Doyle. Accordingly, the state appellate court‟s decision
11
rejecting petitioner‟s Doyle error argument on appeal is not contrary to or an unreasonable
12
application of federal law and should not be set aside.
13
C. Insufficient Evidence
14
Petitioner was charged in Count 5 of the information with “street terrorism,” in violation
15
of California Penal Code § 186.22(a), in that he “did willfully and unlawfully actively participate
16
in a criminal street gang with the knowledge that the gang members did engage in a pattern of
17
criminal gang activity, and did willfully promote, further or assist in felonious criminal conduct
18
by members of that gang.” (CT at 27.)15
19
In his third ground for federal habeas relief, petitioner claims that his conviction on the
20
charge of street terrorism must be reversed because it was not supported by sufficient evidence
21
admitted at his trial. (ECF No. 1 at 8.) He argues that the state court record “fails to prove that
22
the homicide was gang-related.” (Id.) In support of this claim for relief, petitioner refers this
23
court to “argument IV” of his opening brief on appeal. (Id.) In this argument on appeal referred
24
to by petitioner he claimed that “the gang enhancement and gang count must be reversed for
25
insufficient evidence,” (emphasis added), notwithstanding the fact that he was not charged with a
26
15
27
28
Petitioner was not charged with violating California Penal Code § 186.22(b), which mandates
a sentence enhancement for “any person who is convicted of a felony committed for the benefit
of, at the direction of, or in association with any criminal street gang, with the specific intent to
promote, further, or assist in any criminal conduct by gang members.”
26
1
gang enhancement pursuant to California Penal Code § 186.22(b). (Resp‟t‟s Lod. Doc. 1 at 54.)
2
More specifically, petitioner argued on appeal that the record failed to “contain substantial
3
evidence that the homicide was committed for the benefit of, at the direction of, or in association
4
with a criminal street gang,” as required by Penal Code § 186.22(b). (Id. at 61-65.) Petitioner
5
also argued that the record failed to contain substantial evidence that “the homicide was
6
committed with the specific intent to promote, further, or assist in criminal conduct by gang
7
members,” which is also a required finding under Penal Code § 186.22(b). (Id. at 65-67.)
The California Court of Appeal rejected petitioner‟s arguments in this regard, reasoning as
8
9
follows:
10
The Street Terrorism Count
11
Defendant contends “[t]he prosecution proceeded primarily upon a
theory that [defendant] killed [Orsino], because she told him that
she was breaking up with him,” and therefore “the gang
enhancement finding and gang count are not supported by
substantial evidence.” As the People point out, however, defendant
was not charged with a “gang enhancement.” As for the “gang
count” – i.e., the charge of street terrorism – it turns out defendant
does not offer any argument directed at the elements of that crime.
12
13
14
15
Under subdivision (a) of section 186.22, a person “who actively
participates in any criminal street gang with knowledge that its
members engage in or have engaged in a pattern of criminal gang
activity, and who willfully promotes, furthers, or assists in any
felonious criminal conduct by members of that gang” is guilty of
the crime sometimes called street terrorism. Subdivision (b) of that
statute provides a separate criminal street gang sentence
enhancement for “any person who is convicted of a felony
committed for the benefit of, at the direction of, or in association
with any criminal street gang, with the specific intent to promote,
further, or assist in any criminal conduct by gang members.”
16
17
18
19
20
21
Here, defendant‟s sufficiency of the evidence argument is directed
–or rather, misdirected – at the elements of the criminal street gang
enhancement, which was not charged here. First, he argues that
“[t]he record fails to contain substantial evidence that the homicide
was committed for the benefit [of], at the direction of, or in
association with a criminal street gang.” Second, he argues that
“[t]he record is lacking in evidence that, if the homicide was
intentional, [defendant] killed [Orsino] with the specific intent to
advance other criminal conduct by gang members.” Then he
contends that “[f]or the reasons discussed in this argument, the gang
enhancement and gang count are not supported by substantial
evidence and must be reversed.”
22
23
24
25
26
27
28
/////
27
In a criminal case, “to prevail on a sufficiency of the evidence
argument, the defendant must . . . set forth in his opening brief all
of the material evidence on the disputed elements of the crime in the
light most favorable to the People, and then must persuade us that
evidence cannot reasonably support the jury‟s verdict.” (People v.
Sanghera (2006) 139 Cal.App.4th 1567, 1574, second italics
added.) Obviously, a defendant cannot carry this burden of
persuasion if he fails to address any of the elements of the crime at
issue, let alone the disputed elements of that crime. Such is the case
here. Because defendant‟s sufficiency of the evidence argument
addresses only elements of the criminal street gang sentence
enhancement that was not charged here and does not address any of
the elements of the crime of street terrorism that was charged,16
defendant has not carried his burden of persuading us the evidence
was insufficient to support his conviction for that crime.
1
2
3
4
5
6
7
8
9
Thompson, 2010 WL 4493478, at **13-14.
10
Respondent argues the state court‟s finding that petitioner failed to support his claim of
11
insufficient evidence with citations to the trial court record and relevant law constitutes a state
12
procedural bar precluding this court from addressing the merits of petitioner‟s claim of
13
insufficient evidence. (ECF No. 15 at 25.) As noted above, “[a] federal habeas court will not
14
review a claim rejected by a state court „if the decision of [the state] court rests on a state law
15
ground that is independent of the federal question and adequate to support the judgment.” Martin,
16
131 S. Ct. at 1127. However, a reviewing court need not invariably resolve the question of
17
procedural default prior to ruling on the merits of a claim. Lambrix v. Singletary, 520 U.S. 518,
18
524-25 (1997); see also Franklin v. Johnson, 290 F.3d 1223, 1232 (9th Cir. 2002) (“Procedural
19
bar issues are not infrequently more complex than the merits issues presented by the appeal, so it
20
may well make sense in some instances to proceed to the merits if the result will be the same”);
21
Busby v. Dretke, 359 F.3d 708, 720 (5th Cir. 2004) (noting that although the question of
22
procedural default should ordinarily be considered first, a reviewing court need not do so
23
invariably, especially when the issue turns on difficult questions of state law). Thus, where
24
deciding the merits of a claim proves to be less complicated and less time-consuming than
25
adjudicating the issue of procedural default, a court may exercise discretion to reject the claim in
26
its merits and forgo an analysis of procedural default. See Boyd v. Thompson, 147 F.3d 1124,
27
28
16
For example, defendant does not argue there was insufficient evidence that he “willfully
promote[d], further[ed], or assist[ed] in any felonious criminal conduct by members of that gang.”
28
1
1127 (9th Cir. 1998); Batchelor v. Cupp, 693 F.2d 859, 864 (9th Cir. 1982). Under the
2
circumstances presented here, the undersigned finds that petitioner‟s claim of insufficient
3
evidence can be resolved more easily by addressing it on the merits. Accordingly, this court will
4
assume that petitioner‟s claim of insufficient evidence is not procedurally defaulted.
The Due Process Clause “protects the accused against conviction except upon proof
5
6
beyond a reasonable doubt of every fact necessary to constitute the crime with which he is
7
charged.” In re Winship, 397 U.S. 358, 364 (1970). There is sufficient evidence to support a
8
conviction if, “after viewing the evidence in the light most favorable to the prosecution, any
9
rational trier of fact could have found the essential elements of the crime beyond a reasonable
10
doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979). “[T]he dispositive question under
11
Jackson is „whether the record evidence could reasonably support a finding of guilt beyond a
12
reasonable doubt.‟” Chein v. Shumsky, 373 F.3d 978, 982 (9th Cir. 2004) (quoting Jackson, 443
13
U.S. at 318). Put another way, “a reviewing court may set aside the jury‟s verdict on the ground
14
of insufficient evidence only if no rational trier of fact could have agreed with the jury.” Cavazos
15
v. Smith, ___ U.S. ___, ___, 132 S. Ct. 2, 4 (2011).
In conducting federal habeas review of a claim of insufficiency of the evidence, “all
16
17
evidence must be considered in the light most favorable to the prosecution.” Ngo v. Giurbino,
18
651 F.3d 1112, 1115 (9th Cir. 2011). “Jackson leaves juries broad discretion in deciding what
19
inferences to draw from the evidence presented at trial,” and it requires only that they draw
20
“„reasonable inferences from basic facts to ultimate facts.‟” Coleman v. Johnson,___ U.S. ___,
21
___, 132 S. Ct. 2060, 2064 (2012) (citation omitted). “„Circumstantial evidence and inferences
22
drawn from it may be sufficient to sustain a conviction.‟” Walters v. Maass, 45 F.3d 1355, 1358
23
(9th Cir. 1995) (citation omitted).17
24
“A petitioner for a federal writ of habeas corpus faces a heavy burden when challenging
25
the sufficiency of the evidence used to obtain a state conviction on federal due process grounds.”
26
27
28
17
The federal habeas court determines sufficiency of the evidence in reference to the substantive
elements of the criminal offense as defined by state law. Jackson, 443 U.S. at 324 n.16; Chein,
373 F.3d at 983.
29
1
Juan H. v. Allen, 408 F.3d 1262, 1274 (9th Cir. 2005). In order to grant relief, the federal habeas
2
court must find that the decision of the state court rejecting an insufficiency of the evidence claim
3
reflected an objectively unreasonable application of Jackson and Winship to the facts of the case.
4
Ngo, 651 F.3d at 1115; Juan H., 408 F.3d at 1275 & n.13. Thus, when a federal habeas court
5
assesses a sufficiency of the evidence challenge to a state court conviction under AEDPA, “there
6
is a double dose of deference that can rarely be surmounted.” Boyer v. Belleque, 659 F.3d 957,
7
964 (9th Cir. 2011).
8
In this case, as noted by the California Court of Appeal, petitioner‟s arguments, which are
9
contained in his opening brief on appeal, are directed to the sufficiency of the evidence to support
10
a sentence enhancement with which he was not charged. Petitioner does not address the
11
sufficiency of the evidence to support his conviction of violating California Penal Code §
12
186.22(a) as charged in Count 5 of the information. Under these circumstances, petitioner has
13
failed to meet his burden of showing that the evidence introduced at his trial was insufficient to
14
support his conviction on the charge of participation in a criminal street gang. See Jones v.
15
Gomez, 66 F.3d 199, 204 (9th Cir. 1995) (“„Conclusory allegations which are not supported by a
16
statement of specific facts do not warrant habeas relief‟”) (quoting James v. Borg, 24 F.3d 20, 26
17
(9th Cir. 1994)). 18
18
Nor is petitioner entitled to federal habeas relief on the merits of his claim that the
19
evidence admitted at his trial was of insufficient to support his conviction on the street terrorism
20
charge. The substantive offense defined in California Penal Code § 186.22(a) has three elements:
21
Active participation in a criminal street gang, in the sense of
participation that is more than nominal or passive, is the first
element of the substantive offense defined in section 186.22(a).
The second element is “knowledge that [the gang‟s] members
22
23
24
25
26
27
28
18
The court notes that in his petition for review filed in the California Supreme Court, petitioner
deleted reference to Penal Code § 186.22(b), the gang enhancement, and claimed only that his
conviction on the gang offense under Penal Code § 186.22(a)) was not supported by sufficient
evidence. (Resp‟t‟s Lod. Doc. 5 at 23-29.) However, as noted above, the California Supreme
Court dismissed the original grant of review in petitioner‟s case and declined to reach petitioner‟s
claims on the merits. (Resp‟t‟s Lod. Doc. 6, 7.) Accordingly, the decision of the California Court
of Appeal is the relevant “last reasoned” decision for this court‟s review under AEDPA of
petitioner‟s claims.
30
engage in or have engaged in a pattern of criminal gang activity,”
and the third element is that the person “willfully promotes,
furthers, or assists in any felonious criminal conduct by members of
that gang.”
1
2
3
4
People v. Lamas, 42 Cal.4th 516, 523 (2007). As petitioner argued in his opening brief on
5
appeal:
6
The prosecution presented evidence that [petitioner] wore clothing
consistent with gang membership, associated with people that
police considered gang members, told people that he was a gang
member, pled guilty to active participation in a criminal street gang
after his arrest in the Blossom Circle shooting case, was
photographed making gang signs and wearing gang-related attire,
authored gang-related writings, and had more gang tattoos when
arrested in this case than at the time of the Blossom Circle shooting.
7
8
9
10
11
(Resp‟t‟s Lod. Doc. 1 at 59.) Prosecution gang expert Detective Michael George testified that the
12
North Side Gangster Crips (NSGC), petitioner‟s gang, is a Stockton criminal street gang. (RT at
13
1882-88.) According to Detective George‟s trial testimony, the primary activities of the NSGC
14
was homicide, auto theft, gun violations, narcotics trafficking, and robbery. (Id. at 1887-88.)
15
Detective George also testified that petitioner was a member of the NSGC and that the murder in
16
this case promoted and furthered petitioner‟s gang by preventing the victim from informing on
17
the gang‟s activities, which she had witnessed and was aware of. (Id. at 1893-94, 1909-10, 1939-
18
40.) In addition, Clarice Milton testified that she and the victim had witnessed a gang-related
19
shooting and armed robbery committed by petitioner and his fellow gang members the night
20
before Orsino‟s murder. (Id. at 1108-1113.) The next day, petitioner pointed a gun at the two
21
women while discussing his gang affiliation. (Id. at 1182-90, 1906-08.) Based on all of this
22
evidence which was introduced at petitioner‟s trial, the state appellate court decision that the
23
evidence introduced at trial was sufficient to support petitioner‟s conviction for violating Penal
24
Code § 186.22(a) is not contrary to or an unreasonable application of Jackson and In re Winship
25
to the facts of this case. Smith, 132 S. Ct. at 4. A rational juror could have found the essential
26
elements of the crime of participation in a street gang in violation of Penal Code § 186.22(a)
27
beyond a reasonable doubt based upon that evidence.
28
/////
31
1
2
Accordingly, for all of the foregoing reasons, petitioner is not entitled to federal habeas
relief on his insufficiency of the evidence claim.
3
D. Sentencing Error
4
In his final ground for federal habeas relief, petitioner claims that his sentence on Count 5
5
must be stayed “because Counts 1 and 5 punish the identical act.” (ECF No. 1 at 10.) The
6
California Court of Appeal rejected this argument on state law grounds, reasoning, in full, as
7
follows:
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Defendant contends his sentence for street terrorism must be stayed
under section 654 because this charge and the murder charge were
based on the same act. We disagree.
In pertinent part, subdivision (a) of section 654 provides that “[a]n
act or omission that is punishable in different ways by different
provisions of law shall be punished under the provision that
provides for the longest potential term of imprisonment, but in no
case shall the act or omission be punished under more than one
provision.”
“Because of the many differing circumstances wherein criminal
conduct involving multiple violations may be deemed to arise out
of an „act or omission,‟ there can be no universal construction
which directs the proper application of section 654 in every
instance.” (People v. Beamon (1973) 8 Cal.3d 625, 636.)
Nevertheless, our Supreme Court has set forth some basic
principles for applying the statute.
In Neal v. State of California (1960) 55 Cal.2d 11, the court
explained “„[i]t is the singleness of the act and not of the offense
that is determinative.‟ Thus the act of placing a bomb into an
automobile to kill the owner may form the basis for a conviction of
attempted murder, or assault with intent to kill, or malicious use of
explosives. Insofar as only a single act is charged as the basis for
the conviction, however, the defendant can be punished only once.”
(Id. at p. 19.)
But our Supreme Court has also explained that “section 654 refers
not to any physical act or omission which might perchance be
common to all of a defendant‟s violations, but to a defendant‟s
criminal acts or omissions.” (In re Hayes (1969) 70 Cal.2d 604,
607.) “The proper approach, therefore, is to isolate the various
criminal acts involved, and then to examine only those acts for
identity.” (Ibid.)
In Hayes, a majority of our Supreme Court concluded that a
defendant who “drove a motor vehicle for some 13 blocks” while
under the influence of intoxicating liquor and with knowledge that
his driver‟s license was suspended engaged simultaneously in two
distinct criminal acts - “driving with a suspended license and
32
driving while intoxicated” - and could be punished for both, even
though both criminal acts had in common the noncriminal act of
“driving.” (In re Hayes, supra, 70 Cal.2d at pp. 605, 607-608.)
Thus, even in a case in which two offenses are based on the same
physical act, section 654 may not prohibit punishing the defendant
for both offenses. The pertinent question is whether both offenses
are based on the same criminal act.
1
2
3
4
5
To complicate matters further, even when more than one criminal
act is shown, section 654 still may bar multiple punishment in some
circumstances. This is so because “„[s]ection 654 has been applied
not only where there was but one “act” in the ordinary sense . . . but
also where a course of conduct violated more than one statute and
the problem was whether it comprised a divisible transaction which
could be punished under more than one statute within the meaning
of section 654.‟ [Citation.] [¶] Whether a course of criminal
conduct is divisible and therefore gives rise to more than one act
within the meaning of section 654 depends on the intent and
objective of the actor. If all of the offenses were incident to one
objective, the defendant may be punished for any one of such
offenses but not for more than one.” (Neal v. State of California,
supra, 55 Cal.2d at p. 19.) And “[j]ust as it is the criminal „act or
omission‟ to which section 654 refers, it is the criminal „intent and
objective‟” to which Neal refers. (In re Hayes, supra, 70 Cal.2d at
p. 610.)
6
7
8
9
10
11
12
13
14
With these principles in mind, we turn back to the present case. As
we have explained, under subdivision (a) of section 186.22, it is a
crime to actively participate in a criminal street gang with
knowledge that the gang‟s members engage in or have engaged in a
pattern of criminal gang activity, and to willfully promote, further,
or assist in any felonious criminal conduct by members of the gang.
Here, in pretrial discussions between the court and counsel, the
prosecutor made it “clear” that with respect to the charge of street
terrorism, “the felonious conduct [defendant] engaged in was the
homicide itself.” Shortly thereafter, the prosecutor reiterated, “In
order to prove the [street terrorism charge] I have to prove that the
defendant did something felonious. [¶] . . . [¶] Here it‟s the murder
. . . . [¶] . . . [¶] . . . The felonious conduct is the murder.”19
15
16
17
18
19
20
21
Consistent with this approach, in closing argument the prosecutor
asserted defendant “promoted the gang[‟]s conduct by not letting
[Orsino] disrespect him, nor the gang. How so? Because on the
night of May 24th, 2008, when [Orsino] was going to break up with
the defendant, he shot and killed her. Because had [she] broken up
with [him] the day after they did all those shootings, the day after
22
23
24
25
26
27
19
Even though the statute refers to “promot[ing], further[ing], or assist[ing] in any felonious
criminal conduct by members of th[e] gang,” courts have concluded that the crime of street
terrorism applies to the person who actually perpetrates the felonious gang-related criminal
conduct as well as to a person who only promotes, furthers, or assists in that conduct. (E.g.,
People v. Ngoun (2001) 88 Cal. App.4th 432, 436.) Defendant does not argue otherwise here.
28
33
all that happened,20 he not only would have been disrespected
because his girlfriend dumped him, but the gang would have been
worried, who is she going to tell? He promoted their conduct by
getting rid of witnesses. Snitches, as he calls them. During the
commission of [the crime of street terrorism], we know he was
armed with a firearm . . . . He did personally discharge it when he
shot [Orsino], and he intended to do that.”
1
2
3
4
5
Thus it is clear the charges of murder and street terrorism were
based on the very same physical act - the shooting of Orsino.
Under the authorities discussed above, however, that does not
resolve the question of whether section 654 applies here, because,
as we have seen, a single physical act may nonetheless constitute
two distinct criminal acts for purposes of section 654. And if the
shooting of Orsino can be deemed to constitute two distinct
criminal acts, then the application of section 654 depends on
whether defendant can be deemed to have entertained two distinct
criminal objectives in committing those acts.
6
7
8
9
10
Skipping over the question of whether the shooting of Orsino
constituted two distinct criminal acts, the People argue that
punishment for both murder and street terrorism was proper here
because “the two offenses involve[d] different objectives.”
According to the People, defendant “had the personal objective of
killing the woman who had broken up with him and threatened to
abort his child. However, he also had an objective to participate in
a criminal street gang by eliminating a witness to the criminal
activities of his gang, spreading the fear of his gang and avenging a
perceived act of „disrespect‟ shown by the victim.”
11
12
13
14
15
16
Defendant suggests the two objectives the People identify are not
distinct for purposes of applying section 654. In his view,
“[a]ccording to the prosecution‟s gang expert, the killing was
committed to silence a potential witness and to retaliate for
disrespect pursuant to gang culture tenets.” Thus, what the People
characterize as “the personal objective of killing the woman who
had broken up with him and threatened to abort his child,”
defendant characterizes as the gang-related objective of
“retaliat[ing] for disrespect.” In defendant‟s view, because “the
underlying crime [murder] was not independent of the gang
allegations, section 654 applies to preclude separate punishment for
the gang crime.”
17
18
19
20
21
22
We do not find that either party‟s parsing of defendant‟s supposed
“objectives” in shooting Orsino provides a satisfactory basis for
deciding whether the trial court properly (albeit implicitly)
determined that section 654 did not apply here. Consequently, we
turn to some of the cases in which the appellate courts have dealt
with the application of section 654 to a conviction for street
terrorism and one or more other offenses to see what assistance
those decisions provide.
23
24
25
26
27
28
20
The prosecution presented evidence of an incident the night before Orsino was killed in which
Orsino supposedly saw defendant and his compatriots harm a person.
34
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
In People v. Herrera (1999) 70 Cal.App.4th 1456, the defendant
personally used a firearm in a gang-related drive-by shooting and
was convicted of (among other things) two counts of attempted
murder and one count of street terrorism. (Id. at pp. 1460-1462.)
On appeal, Division Three of the Fourth Appellate District
concluded defendant could be separately punished for street
terrorism and attempted murder based on the following analysis:
“The characteristics of attempted murder and street terrorism are
distinguishable, even though aspects of one may be similar to those
of the other. In the attempted murders, Herrera‟s objective was
simply a desire to kill. For these convictions, the identities (or gang
affiliations) of his intended victims were irrelevant. The fact he
repeatedly shot a gun on two separate occasions - the interval
between the two being brief but distinct - striking cars, occupied
apartments and bystanders, is sufficient to establish the specific
intent to kill required for both counts of attempted murder.
[Citations.]
“In contrast, section 186.22, subdivision (a), encompasses a more
complex intent and objective. It is part of the Street Terrorism
Enforcement and Prevention Act which was enacted by emergency
legislation in 1988. [Citations.] The Legislature passed these
criminal penalties and strong economic sanctions as a response to
the increasing violence of street gang members throughout the state.
Previously, there was no existing law that made the punishment for
crimes by a gang member separate and distinct from that of the
underlying crimes. [Citation.]
“Section 186.22, subdivision (a) punishes active gang participation
where the defendant promotes or assists in felonious conduct by the
gang.
It is a substantive offense whose gravamen is the
participation in the gang itself. Hence, under section 186.22,
subdivision (a) the defendant must necessarily have the intent and
objective to actively participate in a criminal street gang. However,
he does not need to have the intent to personally commit the
particular felony (e.g., murder, robbery or assault) because the
focus of the street terrorism statute is upon the defendant‟s
objective to promote, further or assist the gang in its felonious
conduct, irrespective of who actually commits the offense. For
example, this subdivision would allow convictions against both the
person who pulls the trigger in a drive-by murder and the gang
member who later conceals the weapon, even though the latter
member never had the specific intent to kill. Hence, section 186.22,
subdivision (a) requires a separate intent and objective from the
underlying felony committed on behalf of the gang.
The
perpetrator of the underlying crime may thus possess „two
independent, even if simultaneous, objectives[,]‟ thereby precluding
application of section 654. [Citation.]
“Herrera‟s active participation in [his gang‟s] „payback‟ against [a
rival gang] falls squarely within the provisions of section 186.22,
subdivision (a), street terrorism. It requires the defendant to
actively participate in a criminal street gang, have knowledge that
its members engage in criminal activity, and have the intent and
35
1
2
3
4
5
6
7
8
9
10
11
objective to further the gang's felonious conduct. (§ 186 .22, subd.
(a).) Independent of that, Herrera had the simultaneous although
separate objective to actively participate in and promote his gang
when he attempted to murder [the rival] gang members. Herrera‟s
membership in [his gang] was well established at trial, including
expert testimony regarding what such a membership entailed.
Herrera testified he got into the Mustang to „back up‟ or support the
gang. He had told his girlfriend that his gang was going to retaliate
against [the rival gang]. The gang experts explained that gang
warfare uniformly involved guns. The evidence supports the
finding that Herrera intended to aid his gang in felonious conduct,
irrespective of his independent objective to murder.
“Finally, if section 654 were held applicable here, it would render
section 186.22, subdivision (a) a nullity whenever a gang member
was convicted of the substantive crime committed in furtherance of
the gang. „[T]he purpose of section 654 “is to insure that a
defendant‟s punishment will be commensurate with his
culpability.” [Citation.]‟ [Citation.]
We do not believe the
Legislature intended to exempt the most culpable parties from the
punishment under the street terrorism statutes.” (People v. Herrera,
supra, 70 Cal.App.4th at pp. 1466-1468, fns. omitted.)
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
In People v. Ferraez (2003) 112 Cal.App.4th 925, the defendant
was convicted of possessing cocaine base for sale and street
terrorism on the theory he was selling the rock cocaine for the
criminal street gang to which he belonged. (Id. at pp. 927-929.)
On appeal, another panel from Division Three of the Fourth
Appellate District followed Herrera and concluded that “the trial
court was not required to stay defendant‟s sentence for the gang
crime” because “defendant possessed the drugs with the intent to
sell, and he also intended to commit that felony to promote or assist
the gang.
While he may have pursued both objectives
simultaneously, they were nonetheless independent of each other.”
(Id. at p. 935.)
In People v. Vu (2006) 143 Cal.App.4th 1009, the defendant was
convicted of conspiracy to commit murder and street terrorism for a
gang-related revenge shooting. (Id. at pp. 1012-1013.) On appeal,
another panel of Division Three of the Fourth Appellate District
concluded the sentence for street terrorism should have been stayed
under section 654 because “the acts of conspiracy and street
terrorism constituted a criminal course of conduct with a single
intent and objective. That single criminal intent or objective was to
avenge [a fellow gang member‟s] killing by conspiring to commit
murder. Although that intent or objective could be parsed further
into intent to promote the gang and intent to kill, those intents were
not independent. Each intent was dependent on, and incident to, the
other.” (Id. at p. 1034.)
Rather than disagree with Herrera and Ferraez, the Vu court
claimed those cases were distinguishable. (People v. Vu, supra,
143 Cal.App.4th at p. 1034.) The court claimed Herrera was
distinguishable “because the defendant was charged with a course
of criminal conduct involving two gang-related, drive-by shootings
36
in which two people were injured,” and Ferraez was distinguishable
“because under the facts of that case, the trial court could have
found independent objectives.” (Vu, at p. 1034.)
1
2
3
In People v. Garcia (2007) 153 Cal.App.4th 1499, the defendant
was convicted of carrying a loaded unregistered firearm in public
and street terrorism on the theory that he was carrying the firearm
for the benefit of a criminal street gang. (Id. at p. 1502.) On
appeal, another panel of Division Three of the Fourth Appellate
District, without mentioning Vu, followed Herrera and Ferraez and
determined that defendant could be punished for both crimes
because he “knew he was in possession of a firearm in public, and
intended to commit that crime to promote or assist the gang. While
he might have pursued these objectives simultaneously, they were
independent of each other.” (Id. at p. 1514, fn. omitted.)
4
5
6
7
8
9
In People v. Sanchez (2009) 179 Cal.App.4th 1297, the defendant
was convicted of robbery and gang participation (street terrorism).
(Id. at p. 1301.) On appeal, Division Two of the Fourth Appellate
District concluded that “section 654 precludes multiple punishment
for both (1) gang participation, one element of which requires that
the defendant have „willfully promote[d], further[ed], or assist[ed]
in any felonious criminal conduct by members of th[e] gang,” and
“(2) the underlying felony that is used to satisfy this element of
gang participation.” (Sanchez, at p. 1301.) In reaching this
conclusion, the court considered both Herrera and Vu at some
length. (Sanchez, at pp. 1310-1313.) The court noted that “Vu‟s
effort to distinguish Herrera was less than satisfying” and
concluded that “Herrera simply cannot be reconciled with Vu.”
(Sanchez, at pp. 1312-1313.) Then, after discussing “a number of
problems” the court found with Herrera, the Sanchez court
explained why section 654 barred separate punishment for gang
participation in the case before it:
10
11
12
13
14
15
16
17
“Here, the underlying robberies were the act that transformed mere
gang membership - which, by itself, is not a crime - into the crime
of gang participation. Accordingly, it makes no sense to say that
defendant had a different intent and objective in committing the
crime of gang participation than he did in committing the robberies
....
18
19
20
21
“In our view, the crucial point is that, here, as in Herrera and Vu,
the defendant stands convicted of both (1) a crime that requires, as
one of its elements, the intentional commission of an underlying
offense, and (2) the underlying offense itself.” (People v. Sanchez,
supra, 179 Cal. App.4th at p. 1315.)
22
23
24
The Sanchez court concluded that “the robberies - even if not gang
motivated - were necessary to satisfy an element of the gang
participation charge . . . . Accordingly, almost by definition,
defendant had to have the same intent and objective in committing
25
26
27
/////
28
/////
37
all of these crimes.”21 (People v. Sanchez, supra, 179 Cal . App.4th
at p. 1316.)
1
2
The foregoing cases do not reveal a consistent line of reasoning for
applying section 654 to cases, like the present one, where the
defendant is convicted both of street terrorism and another felony,
where the other felony is the “felonious criminal conduct” of the
gang that is used to establish the charge of street terrorism.22
Defendant argues that “[t]his case falls within the Vu rationale,”
while the People contend “[t]his case is closer factually to Herrera
than it is to Vu.” For the reasons that follow, we believe the result
reached in Herrera and its progeny is the correct one here.
3
4
5
6
7
The first question under section 654 is whether the two offenses
involved the same criminal act or distinct criminal acts. We believe
that, as a general matter, when the two offenses are a charge of
street terrorism that is based on an underlying felony committed by
the defendant and that underlying felony, two distinct criminal acts
are involved. This is so because the charge of street terrorism is not
based only on the underlying felony that serves as the “felonious
criminal conduct” the statute requires, but is also based on the
defendant's “active[ ] participat[ion] in [the] criminal street gang
with knowledge that its members engage in or have engaged in a
pattern of criminal gang activity.” (§ 186.22, subd. (a).) Indeed, as
the Herrera court observed, participation in the gang is the
gravamen of the crime of street terrorism. (People v. Herrera,
supra, 70 Cal.App.4th at p. 1467.)
8
9
10
11
12
13
14
15
Under this reasoning, the murder charge was based on a criminal
act distinct from the street terrorism charge, even though both
offenses had in common the shooting of Orsino. It does not
necessarily follow from that conclusion, however, that defendant
can be punished separately for both acts, because we must still
examine his criminal “intent and objective” under Neal.
16
17
18
In Neal, the defendant was convicted “of one count of arson and
two counts of attempted murder [based] upon [his] act of throwing
gasoline into the bedroom of [a married couple] and igniting it.”
(Neal v. State of California, supra, 55 Cal.2d at p. 18.) In
concluding that the defendant could not be separately punished for
arson, the Supreme Court wrote as follows:
19
20
21
22
23
24
25
26
27
28
/////
21
Sanchez involved the anomalous situation where the jury found gang enhancement allegations
on the robbery counts not true (People v. Sanchez, supra, 179 Cal. App.4th at p. 1301) - thus
finding the defendant did not commit the robberies for the benefit of, at the direction of, or in
association with the gang - but nonetheless found the defendant guilty of gang participation
apparently on the theory that the felonious criminal conduct of the gang that he promoted and
furthered was the very robberies he committed (id. at pp. 1305-1308).
22
This issue is now before our Supreme Court in People v. Mesa (2010) 186 Cal.App.4th 773,
review granted October 27, 2010, S185688.
38
1
2
3
4
“If all of the offenses were incident to one objective, the defendant
may be punished for any one of such offenses but not for more than
one. [¶] . . . [¶] In the instant case the arson was the means of
perpetrating the crime of attempted murder . . . . [Separate
punishment for the arson] violated . . . section 654, since the arson
was merely incidental to the primary objective of killing [the
couple].” (Neal v. State of California, supra, 55 Cal.2d at pp. 1920.)
5
6
7
In effect, the court in Neal concluded the defendant had only one
criminal objective - murdering the couple. Because the crime of
arson was merely the means by which the defendant sought to
accomplish that single objective, the defendant could not be
punished for both attempted murder and arson under section 654.
8
9
10
11
12
13
14
15
16
17
18
19
We do not believe the reasoning from Neal compels the conclusion
here that defendant can be punished only for the murder of Orsino
and not for the crime of street terrorism as well. Unlike in Neal,
where the arson was merely “the means of perpetrating the crime of
attempted murder,” here one crime was not merely the means of
perpetrating the other. On this point, it is important to emphasize
that street terrorism requires not only the commission of “felonious
criminal conduct by members of [a] gang,” but also “active[ ]
participat[ion] in [the] gang” separate and apart from that felonious
conduct. (See People v. Castenada (2000) 23 Cal.4th 743, 752
[describing “section 186.22(a)‟s plainly worded requirements” as
“criminal knowledge, willful promotion of a felony, and active
participation in a criminal street gang”].) Thus, while the murder of
Orsino was part of the street terrorism crime, the two crimes were
not coextensive, and thus the murder was not simply the means by
which defendant committed street terrorism, as the arson was the
means by which the defendant committed attempted murder in
Neal. Under this circumstance, the trial court was not bound to
conclude both crimes involved only a single objective, such that
only one punishment could be imposed for both crimes.
Accordingly, the trial court did not err in failing to stay the sentence
on the street terrorism charge pursuant to section 654.
20
21
22
Thompson, 2010 WL 4493478, at *13-19.
Of course, federal habeas corpus relief is unavailable for alleged errors in the
23
interpretation or application of state sentencing laws by either a state trial court or appellate court.
24
See Richmond v. Lewis, 506 U.S. 40, 50 (1992) (the question to be decided by a federal court on
25
petition for habeas corpus is not whether the state committed state-law error but whether the state
26
court‟s action was “so arbitrary or capricious” as to constitute an independent violation of the
27
federal constitution). “State courts are the ultimate expositors of state law,” and a federal habeas
28
court is bound by the state‟s construction except when it appears that its interpretation is an
39
1
obvious subterfuge to evade the consideration of a federal issue. Mullaney v. Wilbur, 421 U.S.
2
684, 691 (1975). See also McElroy v. Holloway, 451 U.S. 1028, 1031 (1981); Horton v. Mayle,
3
408 F.3d 570, 576 (9th Cir. 2005). So long as a state sentence “is not based on any proscribed
4
federal grounds such as being cruel and unusual, racially or ethnically motivated, or enhanced by
5
indigency, the penalties for violation of state statutes are matters of state concern.” Makal v.
6
State of Arizona, 544 F.2d 1030, 1035 (9th Cir. 1976). “Generally, a federal appellate court may
7
not review a state sentence that is within the statutory limits.” Walker v. Endell, 850 F.2d 470,
8
476 (9th Cir. 1987). Thus, “[a]bsent a showing of fundamental unfairness, a state court‟s
9
misapplication of its own sentencing laws does not justify federal habeas relief.” Christian v.
10
11
Rhode, 41 F.3d 461, 469 (9th Cir. 1994).
Applying these principles in federal habeas proceedings, the Ninth Circuit has specifically
12
refused to consider alleged errors in the application of state sentencing law. For instance, the
13
Ninth Circuit has refused to examine the state court‟s determination that a defendant‟s prior
14
conviction was a “serious felony” within the meaning of the state statutes governing application
15
of sentence enhancements. Miller v. Vasquez, 868 F.2d 1116, 1118-19 (9th Cir. 1989). In Miller
16
the court did not reach the merits of the petitioner‟s claim, stating that federal habeas relief is not
17
available for alleged errors in interpreting and applying state law. Id. (quoting Middleton, 768
18
F.2d at 1085). The Ninth Circuit has also held that “[t]he decision whether to impose sentences
19
concurrently or consecutively is a matter of state criminal procedure and is not within the purview
20
of federal habeas corpus.” Cacoperdo v. Demosthenes, 37 F.3d 504, 507 (9th Cir. 1994). Finally,
21
the Ninth Circuit has concluded that petitioner‟s claim regarding merger of convictions for
22
sentencing was exclusively concerned with state law and therefore not cognizable in a federal
23
habeas corpus proceeding. Hendricks v. Zenon, 993 F.2d 664, 674 (9th Cir. 1993).
24
Whether or not a state criminal sentence on one charge must be stayed under California
25
Penal Code § 654 because the conduct at issue involves the same act as another count of
26
conviction involves an interpretation of a state sentencing statute. Watts v. Bonneville, 879 F.2d
27
685, 687 (9th Cir.1989) (petitioner‟s claim that his sentence violated California Penal Code § 654
28
was not cognizable on federal habeas review); Cartwright v. Junious, No. 1:12-cv-0045-LJO-JLT,
40
1
2014 WL 6965649, at *15 (E.D. Cal. Dec. 9, 2014) (“No such subterfuge appears in this record.
2
Thus, the issue related to whether California Penal Code § 654 was properly applied to
3
Petitioner‟s case fails to raise a cognizable federal habeas corpus claim.); Arriaga v. Gonzales,
4
No. EDCV 13-1372-AG (JPR), 2014 WL 5661023, at *21 (C.D. Cal. Oct. 31, 2014) (“Whether
5
the trial court erred in applying section 654 is not cognizable on federal habeas review because it
6
involves only the application and interpretation of state law.”). Here, there is no suggestion that
7
the decision of the California Court of Appeal interpreting California law was “untenable or
8
amounts to a subterfuge to avoid federal review of a constitutional violation.” Oxborrow v.
9
Eikenberry, 877 F.2d 1395, 1399 (9th Cir. 1989.) Nor has petitioner made any showing that the
10
state appellate court‟s interpretation of state law, specifically Penal Code § 654, resulted in a
11
fundamentally unfair sentence being imposed in his case in light of the nature of his convictions.
12
Christian, 41 F.3d at 469; Cartwright, 2014 WL 6965649, at *16.
13
Accordingly, this federal habeas court must defer to the California Court of Appeal‟s
14
determination that the trial court did not commit state law sentencing error in failing to stay
15
petitioner‟s sentence on the street terrorism charge of which he was convicted.
16
IV. Conclusion
17
18
For all the reasons set forth above, IT IS HEREBY RECOMMENDED that petitioner‟s
application for a writ of habeas corpus be denied.
19
These findings and recommendations are submitted to the United States District Judge
20
assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days
21
after being served with these findings and recommendations, any party may file written
22
objections with the court and serve a copy on all parties. Such a document should be captioned
23
“Objections to Magistrate Judge‟s Findings and Recommendations.” Any reply to the objections
24
shall be served and filed within fourteen days after service of the objections. Failure to file
25
objections within the specified time may waive the right to appeal the District Court‟s order.
26
Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir.
27
1991). In his objections petitioner may address whether a certificate of appealability should issue
28
in the event he files an appeal of the judgment in this case. See Rule 11, Federal Rules Governing
41
1
Section 2254 Cases (the district court must issue or deny a certificate of appealability when it
2
enters a final order adverse to the applicant).
3
Dated: January 28, 2015
4
5
6
7
DAD:8:
Thompson32.hc
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
42
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?